Mierzejewski v. Brownell

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CHARLES D. MIERZEJEWSKI v. CRARY BROWNELL
(AC 35747)
Alvord, Mullins and Flynn, Js.
Argued May 13—officially released August 5, 2014
(Appeal from Superior Court, judicial district of
Middlesex, Aurigemma, J.)
William J. O’Sullivan, with whom was Michelle M.
Seery, for the appellant (plaintiff).
Scott W. Jezek, for the appellee (defendant).
Opinion
ALVORD, J. The plaintiff, Charles D. Mierzejewski,
appeals from the summary judgment rendered by the
trial court in favor of the defendant, Crary Brownell, and
from the court’s denial of the plaintiff’s cross motion for
summary judgment. On appeal, the plaintiff claims that
the court improperly (1) concluded that the judgment
in the first action between the parties conclusively
determined that the defendant’s right-of-way was
twenty feet in width, (2) failed to give preclusive effect
to certain findings of the trial court in the second action
between the parties, and (3) stated that the plaintiff’s
continued prosecution of his claims in the present third
action ‘‘is vexatious.’’ We affirm the judgment of the
trial court.
The following facts and procedural history are rele-
vant to this appeal. The plaintiff and the defendant each
own adjoining parcels of land that abut Lake Bashan
in East Haddam. The plaintiff’s parcel is improved with
a dwelling, and he and his wife reside there. The defen-
dant’s parcel, which is located behind the plaintiff’s
parcel, is unimproved and would be landlocked except
for a deeded right-of-way over the plaintiff’s parcel.
Both parcels were once part of a larger tract of land
consisting of 13.2 acres. On October 8, 1958, Constance
Sauer Cuthbertson conveyed the 13.2 acre tract to
Arthur Foreman and Lillian Foreman. That same day,
the Foremans conveyed 3.1 acres of the 13.2 acre tract
to the defendant’s predecessor in title. Because the
defendant’s parcel had no direct access to a public
street, the deed from the Foremans conveyed the parcel
‘‘[t]ogether with a right of way over an old highway1 that
runs along land of William B. Robinson and continues
through other land of the Grantors to a point opposite
the boundary described as 72.1 feet of the granted prem-
ises where the right of way turns Southerly from said
old highway and enters upon the granted premises. Said
right of way shall be 20 feet in width over its entire
distance and shall be for any and all purposes in connec-
tion with the granted premises.’’ In 1997, the defendant
took title to the parcel with the right-of-way.
The Foremans further subdivided their remaining
property into additional parcels. They conveyed a por-
tion to Norbert Pomeranz, the plaintiff’s predecessor
in title, on August 8, 1986. Pomeranz made improve-
ments to the property, including the construction of
a new septic system without obtaining the necessary
permits, and installed the septic tank under a portion
of the deeded right-of-way. The plaintiff purchased the
Pomeranz parcel in 1994, and the warranty deed specifi-
cally provided that the property was being conveyed
subject to the right-of-way described in the 1958 deed
from the Foremans to the defendant’s predecessor in
title.
In 2003, the defendant informed the plaintiff that he
intended to clear the right-of-way. The plaintiff
responded by filing the first action, claiming that the
plaintiff acquired title to the defendant’s right-of-way
by adverse possession, or, in the alternative, by pre-
scriptive easement. The plaintiff requested a judgment
determining the rights of the parties and settling the
title to the right-of-way. The defendant filed an answer,
five special defenses and a five count counterclaim.
After a bench trial, the court, Aurigemma, J., issued a
memorandum of decision in which it concluded that
the plaintiff failed to prove the extinguishment of the
defendant’s right-of-way. In that decision, Judge Auri-
gemma further determined: ‘‘The language in the Fore-
man deed granting the right-of-way at issue here was
quite clear as to the size of the right-of-way. The right-
of-way runs along the northern property line of the
[plaintiff’s] property and is 20 feet in width, with the
entire right-of-way being located on that property.’’
Mierzejewski v. Brownell, Superior Court, judicial dis-
trict of Middlesex, Docket No. CV-03-0100645-S (Sep-
tember 15, 2005). The plaintiff appealed from that
decision.
In Mierzejewski v. Brownell, 102 Conn. App. 413, 925
A.2d 1126, cert. denied, 284 Conn. 917, 931 A.2d 936
(2007), this court affirmed the trial court’s judgment in
the first action between the parties. In his appeal of
the first action, the plaintiff had claimed, inter alia, that
the trial court improperly found that he had not proven
the extinguishment of the right-of-way by adverse pos-
session or prescriptive easement. Id., 414. That claim
was found to be without merit by this court. Addition-
ally, on appeal, the plaintiff had presented several issues
in connection with his argument that the trial court
improperly determined the precise location of the right-
of-way. In response to that argument, this court stated:
‘‘A reading of the court’s memorandum of decision . . .
reveals that the court did not determine the exact loca-
tion of the right-of-way. More specifically, the court did
not decide whether the northern boundary of the right-
of-way was a stone wall or was the center line of the
old highway. Rather, the court merely concluded that
the entire twenty-foot right-of-way, which ‘runs along
the northern property line of [the plaintiff’s property],’
was located on the plaintiff’s property. This finding,
however, is not inconsistent with its conclusion that
the plaintiff had failed to extinguish the right-of-way
by prescription.
‘‘The court’s conclusion that the plaintiff had not
extinguished the right-of-way by prescription was not
dependent on a determination of the exact location of
the right-of-way. . . . [T]he court’s disposition of the
extinguishment claim would be the same, regardless of
the exact location of the northern boundary.’’ (Empha-
sis added.) Id., 417 n.6. For those reasons, this court
concluded that the plaintiff’s claim lacked merit and
declined to address it further. Id.
Mierzejewski v. Brownell, supra, 102 Conn. App. 413,
was officially released on July 17, 2007. Three months
later on October 15, 2007, the plaintiff commenced a
second action against the defendant. In addition to the
defendant, the plaintiff named Robert J. Laneri and
Janice M. Laneri as defendants in the second action. The
Laneris owned an abutting parcel of land that shares a
boundary on the north side of the plaintiff’s parcel.2
The defendant’s right-of-way runs along the northern
property line of the plaintiff’s property, parallel to the
Laneris’ property. In the second action, the plaintiff
claimed that the boundary line between his property
and the Laneris’ property was a stone wall on the north
side of the abandoned highway. The Laneris and the
defendant claimed that the disputed boundary line was
the center line of the abandoned highway. The plaintiff’s
complaint in the second action alleged that the location
of the boundary line between the properties of the plain-
tiff and the Laneris ‘‘implicates the location of [the
defendant’s] right of way across Plaintiff’s property.’’
The plaintiff sought ‘‘a judgment determining the rights
of the parties in and to the property interests described
in this complaint and settling the title thereto.’’
Following a bench trial in the second action, the
court, Bear, J., issued a forty-six page memorandum
of decision. Mierzejewski v. Laneri, Superior Court,
judicial district of Middlesex, Docket No. CV-07-
5003402-S (February 23, 2010). Judge Bear concluded
that the plaintiff and the Laneris each owned in fee to
the stone wall between their properties.3 With respect
to the defendant’s right-of-way, Judge Bear determined
that it ran in the bed of the old highway and that it was
twenty feet in width within the old highway bed. Id. The
court rendered judgment accordingly, and the Laneris
appealed from the judgment in the second action to
this court.
On appeal of the second action, the Laneris claimed
that the trial court improperly determined that the com-
mon boundary between their property and the plaintiff’s
property was the stone wall. Mierzejewski v. Laneri,
130 Conn. App. 306, 308, 23 A.3d 82, cert. denied, 302
Conn. 932, 28 A.3d 344 (2011). The defendant did not
participate in this appeal. This court concluded ‘‘as a
matter of law, that the intent expressed in the deeds
in both the plaintiff’s and the [Laneris’] chains of title
was that the southerly boundary line of the [Laneris’]
land is the center of the old abandoned highway, not
a stone wall.’’ Id. The judgment in the second action
was therefore reversed, and this court remanded the
case to the trial court with the following rescript: ‘‘In
the exercise of our plenary review, we reverse the judg-
ment of the trial court quieting and settling title in the
plaintiff and conclude, as a matter of law, that the intent
expressed in the deeds in the [Laneris’] chain of title
describing the homestead parcel was that the [Laneris’]
southerly boundary line is the center line of the old
abandoned highway. The matter is remanded to the
trial court to render judgment accordingly.’’ Id., 319.
The plaintiff’s petition for certification to appeal was
denied by the Supreme Court on September 20, 2011.
On February 2, 2012, the plaintiff commenced the
present third action against the defendant. In his com-
plaint, the plaintiff alleged that the defendant was
bound by Judge Bear’s determinations in the second
action because he had not participated in the appeal
taken by the Laneris that resulted in the reversal of that
judgment. In his third action, the plaintiff sought ‘‘[a]
judgment determining the rights of the parties in, and
settling title to, the right-of-way pursuant to [General
Statutes §] 47-31 . . . including a determination of the
res judicata and/or collateral estoppel effect of the judg-
ment in the 2007 [second] [a]ction . . . .’’ The defen-
dant filed an answer with five special defenses, alleging,
inter alia, that the plaintiff’s claims were actually liti-
gated or could have been litigated in the two prior
actions between the parties. On December 14, 2012,
the defendant filed a motion for summary judgment,
claiming that the plaintiff’s third action was barred by
the doctrines of res judicata or collateral estoppel. On
December 17, 2012, the plaintiff filed a cross motion
for summary judgment, claiming that he was entitled
to judgment as a matter of law under the ‘‘principles
of res judicata/collateral estoppel . . . .’’
A hearing on the parties’ cross motions for summary
judgment in the third action was held before the court,
Aurigemma, J., on January 28, 2013. On May 28, 2013,
Judge Aurigemma, the same judge who had rendered
judgment in the first action between the plaintiff and
the defendant, issued a memorandum of decision. In
that decision, Judge Aurigemma made the following
factual findings and determinations: (1) the present
action is the third action commenced by the plaintiff
against the defendant since 2002, and all three actions
have included the same prayer for relief, i.e., to quiet
title to the property subject to the dispute; (2) in the
first action, the plaintiff challenged the validity of the
defendant’s right-of-way and raised issues pertaining to
its width and location; (3) the defendant prevailed in
the first action, with the trial court concluding that the
right-of-way ran along the northern property line of the
plaintiff’s property and that the right-of-way was twenty
feet in width; (4) the plaintiff brought the second action,
claiming that the location of the right-of-way had not
been determined in the first action and was uncertain;
(5) the trial court in the second action determined that
the property line between the properties of the plaintiff
and the Laneris was a stone wall on the north side of
the abandoned highway; (6) the Laneris successfully
appealed from the judgment in the second action, and
the Appellate Court held that the Laneris’ southerly
boundary line was the center line of the abandoned
highway; (7) the defendant claims that both the validity
and the width of the right-of-way were determined in
the first action, and that any remaining issues with
respect to the location of the right-of-way were deter-
mined in the second action; (8) the plaintiff claims that
some of the trial court’s findings in the second action
retain validity, most specifically, Judge Bear’s statement
that a portion of the defendant’s right-of-way would be
only ten feet in width if the Laneris’ southern boundary
is the center line of the abandoned highway rather than
the stone wall; (9) the width of the defendant’s right-
of-way was conclusively determined in the first action
by Judge Aurigemma; (10) based upon a review of the
trial court and Appellate Court decisions in the first
and second actions, and the affidavits submitted by the
parties, the first action determined the legality and the
twenty foot width of the defendant’s right-of-way, and
the second action determined the location of the right-
of-way as being the center line of the old highway; (11)
the plaintiff’s argument that selected findings of the
trial court in the second action remain valid despite the
Appellate Court’s reversal of the judgment in that action
has no merit; (12) all claims that the plaintiff seeks to
litigate in the present third action against the defendant
either were or could have been litigated in the prior two
actions; and (13) the plaintiff’s continued prosecution of
this action is vexatious. For those reasons, the court
granted the defendant’s motion for summary judgment
and denied the plaintiff’s cross motion for summary
judgment. This appeal of the court’s judgment in the
third action followed.
‘‘Practice Book [§ 17-49] provides that summary judg-
ment shall be rendered forthwith if the pleadings, affida-
vits and any other proof submitted show that there is
no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
. . . In deciding a motion for summary judgment, the
trial court must view the evidence in the light most
favorable to the nonmoving party. . . . The party seek-
ing summary judgment has the burden of showing the
absence of any genuine issue [of] material facts which,
under applicable principles of substantive law, entitle
him to a judgment as a matter of law . . . and the party
opposing such a motion must provide an evidentiary
foundation to demonstrate the existence of a genuine
issue of material fact. . . . [T]he scope of our review
of the trial court’s decision to grant the [defendant’s]
motion for summary judgment is plenary.’’ (Internal
quotation marks omitted.) Doran v. First Connecticut
Capital, LLC, 143 Conn. App. 318, 320–21, 70 A.3d 1081,
cert. denied, 310 Conn. 917, 76 A.3d 632 (2013). ‘‘Addi-
tionally, the applicability of res judicata . . . presents a
question of law over which we employ plenary review.’’
(Internal quotation marks omitted.) Nipmuc Proper-
ties, LLC v. Meriden, 130 Conn. App. 806, 812, 25 A.3d
714, cert. denied, 302 Conn. 939, 28 A.3d 989 (2011),
cert. denied, U.S. , 132 S. Ct. 1718, 182 L. Ed. 2d 253
(2012). ‘‘Similarly, [t]he applicability of the [doctrine] of
. . . collateral estoppel presents a question of law, over
which our review is plenary.’’ (Internal quotation marks
omitted.) Marques v. Allstate Ins. Co., 140 Conn. App.
335, 339, 58 A.3d 393 (2013).
We begin by setting out the doctrines of res judicata
and collateral estoppel. ‘‘Claim preclusion (res judicata)
and issue preclusion (collateral estoppel) have been
described as related ideas on a continuum. . . . [W]e
have observed that whether to apply either doctrine
in any particular case should be made based upon a
consideration of the doctrine’s underlying policies,
namely, the interests of the defendant and of the courts
in bringing litigation to a close . . . and the competing
interest of the plaintiff in the vindication of a just claim.
. . . The judicial doctrines of res judicata and collateral
estoppel are based on the public policy that a party
should not be able to relitigate a matter which it already
has had an opportunity to litigate. . . .
‘‘The doctrine of res judicata holds that an existing
final judgment rendered upon the merits without fraud
or collusion, by a court of competent jurisdiction, is
conclusive of causes of action and of facts or issues
thereby litigated as to the parties and their privies in
all other actions in the same or any other judicial tribu-
nal of concurrent jurisdiction. . . . If the same cause
of action is again sued on, the judgment is a bar with
respect to any claims relating to the cause of action
which were actually made or which might have been
made. . . . Res judicata bars not only subsequent relit-
igation of a claim previously asserted, but subsequent
relitigation of any claims relating to the same cause of
action . . . which might have been made. . . .
‘‘Collateral estoppel, or issue preclusion, is that
aspect of res judicata which prohibits the relitigation
of an issue when that issue was actually litigated and
necessarily determined in a prior action between the
same parties upon a different claim. . . . Collateral
estoppel means simply that when an issue of ultimate
fact has once been determined by a valid and final
judgment, that issue cannot be litigated between the
same parties in any future lawsuit. . . . Issue preclu-
sion arises when an issue is actually litigated and deter-
mined by a valid and final judgment, and that
determination is essential to the judgment.’’ (Citations
omitted; internal quotation marks omitted.) Massey v.
Branford, 119 Conn. App. 453, 464–65, 988 A.2d 370,
cert. denied, 295 Conn. 921, 991 A.2d 565 (2010).
I
The plaintiff’s first claim is that the court improperly
granted the defendant’s motion for summary judgment
through the ‘‘faulty application of the principles of col-
lateral estoppel and res judicata . . . .’’ More specifi-
cally, the plaintiff argues that the court ‘‘erred in
concluding’’ that the judgment in the first action
between the parties ‘‘ ‘conclusively determined’ that the
width of the right-of-way was twenty feet.’’ The plaintiff
maintains that (1) the only issue he raised in the first
action was whether the defendant’s right-of-way had
been extinguished and (2) footnote 6 in Mierzejewski
v. Brownell, supra, 102 Conn. App. 413, confirmed that
the judgment against the plaintiff on his extinguishment
claim was not dependent on Judge Aurigemma’s deter-
mination regarding the twenty foot width of the right-
of-way.
The same judge who presided over the trial in the
first action, and rendered a judgment in favor of the
defendant, subsequently rendered summary judgment
in favor of the defendant in this third action on the
grounds of res judicata and/or collateral estoppel. Judge
Aurigemma expressly stated in the memorandum of
decision in the third action that the validity and the
width of the defendant’s right-of-way was conclusively
determined in the first action. This determination is
verified by a review of Judge Aurigemma’s memoran-
dum of decision in the first action, in which she stated:
‘‘The language in the Foreman deed granting the right-
of-way at issue here was quite clear as to the size of the
right-of-way. The right-of-way runs along the northern
property line of the [plaintiff’s] property and is 20 feet
in width,4 with the entire right-of-way being located on
that property.’’ Mierzejewski v. Brownell, supra, Supe-
rior Court, Docket No. CV-03-0100645-S.
The plaintiff claims that the width of the right-of-way
was not an issue in the first action. Judge Aurigemma,
in the written decisions issued in the first and third
actions, has expressly stated otherwise. The plaintiff
has provided no evidence to show that the court’s state-
ments are erroneous. Although the record in this appeal
includes copies of pleadings, transcripts, and other doc-
umentation related to the second action, it does not
contain pleadings, transcripts, or other documentation
related to the first action. We will not presume that
Judge Aurigemma’s determinations are erroneous or
that she failed to apply the proper legal analysis in
the absence of any evidence to the contrary. See, e.g.,
Kaczynski v. Kaczynski, 294 Conn. 121, 129–30, 981
A.2d 1068 (2009); Shamitz v. Taffler, 145 Conn. App.
132, 142, 75 A.3d 62 (2013); Farrell v. Farrell, 36 Conn.
App. 305, 313, 650 A.2d 608 (1994).
Moreover, footnote 6 in Mierzejewski v. Brownell,
supra, 102 Conn. App. 413, does not compel a different
conclusion. Footnote 6 explicitly provides that the
‘‘exact location’’ of the right-of-way had not been deter-
mined in the plaintiff’s first action. Id., 417 n.6. The
footnote does not address the width of the right-of-way.
Because the exact location had not been determined in
the first action, the plaintiff commenced the second
action against the Laneris to determine the boundary
line, and, hence, the exact location of the defendant’s
right-of way. All issues, therefore, concerning the width
and location of the defendant’s right-of-way have been
determined in the first and second actions between
the parties. Accordingly, the court in this third action
properly concluded that the plaintiff’s claims in this
action were precluded because they ‘‘either were or
could have been litigated in the prior two cases.’’ The
trial court therefore properly rendered summary judg-
ment in favor of the defendant.
II
The plaintiff’s next claim is that the court improperly
denied his cross motion for summary judgment because
it failed to give preclusive effect to Judge Bear’s obser-
vation in the second action that the defendant’s right-
of-way would be only ten feet in width along the Laneris’
property if the southerly boundary was the center line
of the old highway rather than the stone wall.5 Because
we have concluded that the width of the right-of-way
already had been determined in the first action, it is
not necessary to address the plaintiff’s second claim.6
III
The plaintiff’s final claim is that the court, in its mem-
orandum of decision, improperly stated that his ‘‘contin-
ued prosecution of this action is vexatious.’’ This claim
merits little discussion. The defendant did not raise a
claim of vexatious litigation in his special defenses, nor
did he file a counterclaim alleging vexatious litigation.
Simply put, it was not an issue to be resolved by the
court, nor was such a determination necessary for the
resolution of the issues in the third action. As such,
it was mere dicta and has no precedential value. See
Farmington Valley Recreational Park, Inc. v. Farm-
ington Show Grounds, LLC, 146 Conn. App. 580, 589,
79 A.3d 95 (2013); Porto v. Sullivan, 119 Conn. App.
360, 366 n.4, 987 A.2d 1092 (2010).
The judgment is affirmed.
In this opinion the other judges concurred.
1
The ‘‘old highway’’ was discontinued as a public highway in 1866.
2
The Laneris’ property, also known as the ‘‘Homestead’’ parcel, was not
part of the 13.2 acre tract of land owned by the Foremans in 1958.
3
At page six of the decision, Judge Bear noted that the defendant agreed
with the Laneris that the common boundary was the center line of the
abandoned highway rather than the stone wall. Judge Bear observed: ‘‘[The
defendant] is supporting the position of the Laneris that the southern bound-
ary of their easterly parcel, the ‘Homestead’ parcel, is the center line of
such old highway. If [the Laneris’] position were correct, [the defendant’s]
deeded right-of-way that traverses to the south of the Laneri ‘Homestead’
parcel is ten feet and not twenty feet wide since it is limited to the bed of
such ‘old highway’ and the Laneri ‘Homestead’ parcel had not previously
been owned by [the Foremans]. Thus, [the defendant] does not have a claim
based on his deeded right-of-way to traverse the northerly ten feet of the
old highway bed if it is owned by the Laneris. This seemingly counterintuitive
and self-defeating approach, while evidence of the depth of [the defendant’s]
probably justified negative attitude toward [the plaintiff], calls into question
his credibility in this case.’’ Mierzejewski v. Laneri, supra, Superior Court,
Docket No. CV-07-5003402-S.
4
The language in the 1958 deed, in which the Foremans conveyed 3.1
acres of their 13.2 acre tract to the defendant’s predecessor in title, supports
the trial court’s determination that the defendant’s right-of-way is twenty
feet in width. At the time the Foremans conveyed the 3.1 acre parcel, they
still retained the parcel now owned by the plaintiff. Although Judge Bear
determined in the second action that the right-of-way was confined to the
bed of the old highway, the clear language in the 1958 Foreman deed belies
that interpretation. The right-of-way, as conveyed, ran along Robinson’s
land, now the Laneris’ land, ‘‘and continue[d] through other land of the
[Foremans] . . . . Said right of way shall be 20 feet in width over its entire
distance and shall be for any and all purposes in connection with the granted
premises.’’ (Emphasis added.)
Although Judge Bear was correct that the right-of-way could not have
extended into the Laneris’ parcel because the Foremans had never owned
it, the Foremans did own the plaintiff’s parcel when they conveyed the right-
of-way and the express language in the deed specifies that the width was
to be twenty feet for the entire distance of the right-of-way.
5
The plaintiff places great importance on the fact that the defendant did
not appeal from Judge Bear’s judgment in the second action. Although
Connecticut recognizes the general rule that a nonappealing party is bound
by the decision of the lower court, we also have recognized that there are
times when a nonappealing party can benefit from an appellate court’s
determination even though that party did not participate in the appeal. This
exception to the general rule is applicable in the present case. ‘‘[W]hen the
rights of all the parties are interwoven or when the erroneous legal decision
of the lower court forms the basis for all of the parties’ rights, the nonappeal-
ing party is entitled to the benefit of the appellate court determination.’’
(Internal quotation marks omitted.) Gino’s Pizza of East Hartford, Inc. v.
Kaplan, 193 Conn. 135, 143 n.7, 475 A.2d 305 (1984).
6
We also note that Judge Bear’s statement, found on page six of a forty-
six page decision, was addressed primarily to the issue of the defendant’s
credibility.